WARD v. STATE OF NEW YORK, #2002-018-163, Claim No. 101210

Synopsis

Claim dismissed after trial. The defendant did not create the dangerous
condition which claimant believes exists. The claimant must be charged with
assuming the risk of participating in the sport.

Case Information

UID:

2002-018-163

Claimant(s):

CHARLES WARD

Claimant short
name:

WARD

Footnote (claimant name)
:

Defendant(s):

STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

101210

Motion number(s):

Cross-motion
number(s):

Judge:

DIANE L. FITZPATRICK

Claimant's
attorney:

CHARLES WARDPro Se

Defendant's
attorney:

ELIOT SPITZERAttorney General of the State of New YorkBy: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General

Third-party defendant's
attorney:

Signature date:

August 27, 2002

City:

Syracuse

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claimant seeks damages from the State of New York and "John Doe Manufacture"
for injuries he sustained while an inmate at Riverview Correctional Facility
(hereinafter Riverview). The Court dismissed the claim as against "John Doe
Manufacture" as this Court lacks jurisdiction over any private entity (Court of
Claims Act §9).

Claimant testified that on July 3, 1999, at approximately 1:30 p.m., he was
participating in a softball game at the shortstop position. The ball was being
thrown into the infield from the outfield, and claimant was backing up the third
baseman in an effort to prevent the ball from leaving the playing field. The
ball apparently hit the top of the third baseman's glove and careened off, over
the boundary line. Claimant ran to catch the ball and, in doing so, collided
with metal bleachers which are located outside of the boundary line.

Claimant cut his right arm when he hit the corner of the bleachers and was
taken to the infirmary. He was examined by a nurse, pictures were taken, and he
was treated for his injuries.

Claimant alleges negligence for not placing cushions over the sharp ends of
the aluminum bleachers but instead leaving them exposed. Claimant testified he
was in a great deal of pain for approximately two weeks, and his arm itched on
occasion during the healing process. Further, claimant has two scars on his
right arm which he believes to be permanent. He did miss time from his program
and also testified that he could not play sports for two-to-three
months.

On cross-examination, claimant stated that he began playing softball at
Riverview in May 1999, and had played five or six games prior to his injury.
Claimant knew where the bleachers were located and sat on them in observing
other activities on the field. Claimant was also aware of the boundary line
along the third base side but contended that the ball was still in play when he
attempted to retrieve it.

Claimant called a summer employee at Riverview, David Willard, who was
supervising the softball game at the time of the incident. Mr. Willard saw
claimant hit the bleachers but could not recall if anyone was on base at the
time. Mr. Willard assisted claimant by taking him to the guard shack. Claimant
also called the Riverview Recreation and Program Director, William Bruyere, who
testified that the bleachers came assembled, and that he was unaware of the
availability of bleacher padding to cover the sharp surfaces.

The State called both Mr. Willard and Mr. Bruyere on its direct case and also
submitted photographs of the playing field. The photographs depict pertinent
portions of the softball field, including the bleachers, the third base line and
the out-of-bounds line. Mr. Willard estimated that there were 21 or 22 feet of
space between the third base foul line and the out-of-bounds line. Mr. Willard
further estimated there was roughly 12 feet from the out-of-bounds line to the
bleachers.

The participants in a sporting event, whether they be professionals or
amateurs, consent by means of their participation to a certain level of risk
inherent in the nature of sport (

Morganv State of New York, 90 NY2d 471, 484). That assumption of
risk applies not only to the sport itself but also to any possible defects to
the arena in which it is played (Paone v County of Suffolk, 251 AD2d 563,
563). Further, for a claimant to succeed in his action for negligence, it must
be shown that the defect created a "dangerous condition over and above the usual
dangers that are inherent in the sport" (Owen v R.J.S. Safety Equip., 79
NY2d 967, 970). However, in order for a participant to assume the risk of a
defective condition on the playing field, the condition must be obvious, and
readily apparent to the participant (Colucci v Nansen Park, Inc., 226
AD2d 336). In this case, the location of the bleachers out-of-bounds was an
obvious risk known to claimant and to all of the softball participants.
Claimant had previously played softball on this field as well as other sports,
and he had also sat on the bleachers as a spectator prior to his
injury.

Upon review of the evidence, the Court finds that the defendant did not create
the dangerous condition which claimant believes exists, and that the State
clearly marked the boundary line which was sufficient distance from the set of
bleachers which was the cause of claimant's injury. Claimant has to be charged
with assuming the risk of participating in the sport, and the Court finds that
his activity of attempting to retrieve a ball heading toward the out-of- bounds
line near the bleachers was the substantial cause of his injuries. The
bleachers were a condition, obvious and known to the claimant, which he made no
effort to avoid. The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED
ACCORDINGLY.